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xavierjd
xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience:  20 yrs exp. in divorce, custody, visitation & support .
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brother has pow over father and father wants to live with daughter,

Customer Question

brother has pow over father and father wants to live with daughter, can brother keep father from doing this?
Submitted: 1 year ago.
Category: Family Law
Expert:  xavierjd replied 1 year ago.
Thank you for using JustAnswer.com It will be my pleasure to assist you today.

Does your brother have power of attorney over his finances? or over his person? (eg. placement decisions) or over his health care decisions? Or does he have all three types of power of attorney?

Thanks
Customer: replied 1 year ago.

I know he has over finances and medicial

Expert:  xavierjd replied 1 year ago.
Do you know if your brother has gone to court to be appointed guardian over your father's person or over his estate (money)?

Do you know if there is a court ordered conservatorship (over the money)?

Or, did your father create the power of attorney(s)?

Thanks
Customer: replied 1 year ago.

no brother has not been to court for anything. no court ordered conservatorship. yes according to dads will all 3 of us are to share dads will equally and brother got poa because dad was getting a little foggy an d he thought dad was not making clear decisions but sister and i did not see that difference in dad.

Expert:  xavierjd replied 1 year ago.
Hi,

First, a will comes into play AFTER a person dies. So, as long as your father has not changed his will (and he must be competent to do so), the division of the property among the siblings will remain as it is written in the will. However, if the will is, or has been changed, due to the undue influence of your brother over your father, or because your brother wants more of the estate, you and your other sibling may institute a "will contest" in probate court after your father passes.

A Power of Attorney is in effect while the person is alive. If your brother is the "attorney in fact" for your father regarding health care decisions, then that means that your brother may make those decision for your father ONLY IF your father can not make those decisions for himself.

If your brother is "attorney in fact" over your father's finances, that means that your brother can make decisions regarding your father's bank accounts, stocks, bonds, real estate, etc. However, a Power of Attorney may also be limited in the powers that it gives the "attorney in fact."

When a person wants to make legal decisions for another as to the placement, living arrangements, etc. of the person, USUALLY, a person (your brother) would have to go to the Probate Court and Petition the Court for Guardianship over the person of your father. The reason for such a guardianship would be that your father cannot make decisions on his own behalf, and that he is "incompetent" to do so. The incompetency can be physical and/or mental. For example, if your father has Alzheimer's and can no longer make decisions on his own, a Petition for Guardianship would have to be brought before the Court. The Petition can be brought by anyone or even an agency. If your brother filed a Petition for Guardianship over the person of your father, you and/or your other sibling could object to the Guardianship.

It is important to remember that the provisions of a Will ONLY come into play after the death of the Testator (your father). Guardianships, conservatorships, or powers of attorney are in play while your father is alive.

You need to request to see a copy of the Power of Attorney(s) that your father has in his possession, or that he has signed and given to your brother. The Power of Attorney will spell out, in detail, the powers granted to the attorney in fact (your brother).

I hope you find this information useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. If you are satisfied with my answer, please rate it as "excellent" or in another positive manner. That is the only way that I can get credit for answering the question.

Thank you for your business!

XavierJD
Customer: replied 1 year ago.

XavierJD father does not have copies of the poa's that my brother has. is father supposed to have a copy of them and where do i get a copy of these if brother will not give me a copy of them for we have never seen any of these papers. please tell where i can get copy of these?

Expert:  xavierjd replied 1 year ago.
Hello,

Your brother must have the original POA. If only an original exists, then you can request that your brother give you a copy.

In Ohio, some POA's must be registered with the court. For example, any POA granting an agent the power to convey real estate, mortgages or other interests in real property must be filed with the appropriate court clerk's office. Similarly, revoking such registered POA requires filing the revocation with the same court clerk's office.

If your father is competent to make his own decisions, he can revoke the power of attorney(s) at any time. While a revocation of the power of attorney doesn't have to be in writing, it SHOULD be in writing and state when the revocation is effective. It should be signed, dated and notarized.

If your brother will not comply with your request, then you may wish to file a Petition for Guardianship over your father in the probate court. If you wish to do so, you should contact an attorney who specializes in probate law in the county in which your father resides. Sometimes, an initial consultation is free or at a minimal cost. You can discuss the specific facts of your case, evaluate your options and decide how to proceed.

Below is a link to the Ohio Bar Association Attorney Referral Page.

http://www.ohiolegalservices.org/programs/ohio-lawyer-referral-programs-1

I hope that you find this information useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. If you are satisfied with my answer, please rate it as "excellent" or in another positive manner. That is the only way that I can get credit for answering the question.

Thank you for your business!

XavierJD

Customer: replied 1 year ago.

XavierJD is it possible to call the clerk of courts and ask about the poa?

Expert:  xavierjd replied 1 year ago.
Hi,

Yes. It is possible to call the Clerk of the Court regarding the POA. However, it is in the discretion of the Clerk as to whether s/he will provide information over the telephone. However, even if you cannot obtain the information by telephone, you can ask the Clerk for the procedure by which the information regarding the POA may be obtained.

I hope you find this information useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. If you are satisfied with my answer, please rate it as "excellent" or in another positive manner. That is the only way that I can get credit for answering the question.

Thank you for your business!

XavierJD
xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience: 20 yrs exp. in divorce, custody, visitation & support .
xavierjd and 8 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

XavierJD yes you have been very helpful and if i have any other questions i will seek your answers. thank you

Expert:  xavierjd replied 1 year ago.
Hello,

Thank you so much for the "excellent service" rating! It is greatly appreciated and I am glad that you found the information useful.

If you have future questions, you can specifically request me by name as the expert.

Thanks again,

xavierjd
Customer: replied 1 year ago.

one more question is there another type of poa the sister csn get to keep dad with her so that brother can not pull dad from her home, as things are right now he is trying to pull the shots at sisters home about dad need some help with this brother of ours who thinks he is little bull dog

Expert:  xavierjd replied 1 year ago.
Hello,

Your sister may wish to Petition the Probate Court for Guardianship over your father. However, in order to gain guardianship, your father must be deemed "incompetent" either because of a mental deficiency or a physical disability such that your father cannot take care of himself on a daily basis.

Your sister may also seek to Petition the Probate Court for Conservatorship over your father's estate--meaning his bank accounts, stocks, and all finances. Again, a conservator is usually appointed when a person is not competent to take care of his own finances.

If your sister becomes Guardian and Conservator over your father, the POA's that your brother now holds may become ineffective. If she wishes to do this, she should contact an attorney who specializes in probate law in the county in which your father resides. She can discuss the specific facts of the case, evaluate her options and decide how to proceed.

I hope you find this information useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. If you are satisfied with my answer, please rate it as "excellent" or in another positive manner. That is the only way that I can get credit for answering the question.

Thank you for your business!

XavierJD

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